Quick follow up: it’s not only the Buckley court that’s been imprecise in “defining” major purpose – they’re joined by quite a list of other courts and agencies which have either said out loud that they intentionally choose to leave this fundamental threshold of PAC status undefined or which have “defined” it or applied it in essentially standardless terms.  As a practitioner, this murky state of the law is great for business (in kind of an immediate-term way of looking at it), but it drives clients justifiably crazy, and IMO it doesn’t really do much for the overall effectiveness of efforts to regulate the connections between private money and public policy. 

 

So here’s a thought both as something of a statement against interest and as a sincere recommendation for sounder policy: assuming Speechnow eventually becomes the law nationwide, and that therefore IE PACs (rightly, in my view) no longer will be subject to dollar amount limits or source prohibitions (other than the foreign national prohibition) on their incoming receipts, PAC status won’t mean nearly as much as it used to.  Point being that since disclosure is what PAC status boils down to for IE groups, it seems to me that a more appropriate and effective rule on disclosing funds given for political purposes to groups other than PACs would moot the need to define major purpose.  (And would therefore also moot the need to decide whether to define major purpose…)

 

Just to be clear, btw, given some past discussions: I don’t think that appropriate and effective rule necessarily must look exactly like the DISCLOSE Act.  DISCLOSE would do the trick, IMO, but there are other ways like combining CA’s “bite at the apple” rule with a more straightforward application of the “for the purpose of furthering” standard of 434(c).  Create a presumption, for example, that a donation to a group that has made significant political expenditures in the past (or which is given to the group on the basis of its planned future political activity) is to be treated as a disclosable contribution.  Exemptions could be allowed for smaller donations (below $1,000 or so aggregate per calendar year), groups with a legitimate fear of violent or other criminal retribution against their donors (I have in mind “Strange Fruit”-style retribution, not “intemperate emails”-style), and any restriction from the donor that the funds are not to be used for political activity would defeat the presumption. 

 

Clearly, what I’ve sketched out here leaves some hard questions unanswered (like exactly what besides express advocacy & GOTV gets treated as “the like” in Steve’s list of categories of campaign activity), but at bottom my point is not that the hard questions around IE disclosure can be resolved through a few exchanges on this terrific listserv.  Instead, it’s that if broader disclosure of IE activity is the goal (as I think it should be), then approaching those ends first and foremost by imposing PAC status on the group that executes the IE’s is overkill.  Addressing the goal of informing the electorate and policing relationships between money & policy is both easier and more effective by just writing and enforcing better disclosure rules for all groups, even (especially) for those that aren’t PACs. 

 

OTOH, I have two small kids at home who frequently need new shoes and who I hope eventually to put through college, so by all means please don’t think anyone should forgo the PAC status route on my account… 

 

Best,

Joe

 

 

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA

 

 

 

 

 

Paris:

It is all the rage to point out how imprecise the Buckley Court was in defining major purpose.  And the point is correct, as far as it goes.  But there is a school of thought, to which I adhere, that the determination should be as objective as possible -- and not turn on intent or the eye of the (regulatory) beholder.  Remember, "major purpose" exists to shield from stringent regulation groups that make politics a minor part of what they do.

Even for those organizations that claim a "electoral" or "campaign" activity as their purpose on organizational documents (think IRS 527; tax law is not First Amendment law) the test should include an established pattern of overall spending on campaign activity before the group can be required to register. 

Categories of campaign activity are express advocacy, GOTV, and the like.

As to where "small" begins and ends in the 10th Circuit, I defer to friends at IJ.

Steve

--
Steve Hoersting
CENTER FOR COMPETITIVE POLITICS
124 West Street South
Suite 201
Alexandria, Virginia 22314
SHoersting@campaignfreedom.org
www.campaignfreedom.org
(703) 894-6800 phone